BEFORE THE UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

THE FLIGHT SHOP, INC. D/B/A

PROFESSIONAL AIR, and

AERO FACILITIES, LLC

Complainants,

v. Docket No. 16-14-12

CITY OF BEND

Respondent.

ANSWER TO MOTION

Pursuant to 14 C.F.R. § 16.19(c), the City of Bend (“City”), submits this Answer to the

Motion to Supplement the Record (“Motion”) submitted on August 13, 2015by The Flight Shop,

Inc. d/b/a Professional Air (“Pro Air”) and Aero Facilities, LLC (“Aero Facilities”) (together

“Complainants”).

1. Complainants seek to insert into the adminsitrative record an email dated 02/12/2008

from Susan Palmeri, a former Bend Airport Manager who served in that capacity for

approximately one year until early 2009, Complaint ¶ 18, to Eric Grindy, who was the City’s

Real Estate Manager until April 2008 (“Email”). In her Email, Ms. Palmeri raises concerns with

what she describes as “Aero Facilities Phase III agreement,” and suggests a meeting to dicuss the

issue with John Russell and Pete Schannauer. At the time, Mr. Russell was the City’s Economic

Development Director and Mr. Schannauer was outside City attorney; both served in their

respective capacities until late in 2008.
2. While the City takes no position on whether the Motion should be granted, the City

objects to the Complainants’ characterization of the Email as providing

critical evidence and absolute proof. . . that the reason Respondent has engaged

in a series of unjustly discriminatory and improper actions against both

Complainants is because it realized that a series of transactions Respondent

entered into with Aero Facilities was in direct conflict with its grant assurances.

Motion at 1-2. Such characterization is baseless.

3. First, the Email does not explain and provides no hint of why the former Airport Manager

believed that the Aero Facilities agreements conflicted with the City’s Grant Assurances.

Moreover, Complainants do not allege that the former Airport Manager took any action “to get

out” of the agreements, as she appreantly believed the City should. In fact, Complainants

themselves allege that it was not until Ms. Palmeri left and the next Airport Manager arrived that

the City’s “attitude changed. . . stopped cooperating and began to overtly discriminate against

the Complainants.” Complaint ¶ 11.

4. Second, as amply demostrated in the Consolidated Answer, Motion to Dimiss, and

Motion for Summary Judgement (“Answer”), and in the Rebuttal, the City has not engaged in

unjustly discriminatory and improper actions againt Complainants or in favor of others. See,

e.g., Answer at 4-15 and 47-57; Rebuttal at 3-15.

5. Third, and most importantly, the City does not believe that the agreements it entered into

with Aero Facilities for the development of portions of the east side of the Airport are in conflict

with the City’s obligatiosn under the Grant Assurances. As already shown in detail, the City has

retained all of the rights and powers necessary to operate the Airport and to perform all of the

tems and conditions of the Grant Assurances, Answer at 43-45, and the City has not granted an

exclusive right to Aero Facilities, Answer at 45-46. The Complainants are the only ones

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suggesting that the Aero Facilities agreements conflict with Grant Assurances, see Answer at 38-

40, and they are wrong.

Conclusion

The new, late evidence that Complainants now seek to introduce into the administrative

record does not show what the Complainants claim it shows. Thus, to the extent that the

Director grants the Motion, he should accept the Email for what it is: an internal exchange

between two mid-level City employees evidencing certain unspecified concerns that the former

Airport Manager had at the time the Email was written. That is all the Email shows, and it

proves nothing more.

Pablo 0. Nüesch

Katharine M. Mapes

Jessica R. Bell

Spiegel & McDiarrnid LLP

1875 Eye Street, N.W.

Suite 700

Washington, DC 20006

Email: pablo .nuesch~spiegelmcd.com

Phone: 202-879-4000

Fax: 202-393-2866

Attorneys for the

City of Bend, Oregon

August 24, 2015

Respectfully submitted,

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Certificate of Service

I hereby certify that I have today, the 24th day ofAugust, 2015, caused the foregoing

Answer to Motion to be served electronically, on the following:

Leonard D. Kirsch, Esq.

McBreen & Kopko

500 North Broadway

Jericho, NY 11753

lkirsch~rnklawnyc.com

Martin E. Hansen, Esq.

Francis, Hansen & Martin LLP

1148 NW Hill St.

Bend, OR 97701

meh@francishansen.com

Attorneys for Complainants

Pablo 0. Nuesch